Should Ms. Meng Wanzhou be extradited from Canada to the US? The Canadian court overseeing her case and Canada’s Minister of Justice are responsible for determining this. If an abuse of process by either the requesting or requested state was committed during the extradition proceedings, it might lead to a legal result contrary to judicial fairness. In this case, the extradition judge or the Minister of Justice could refuse to extradite her to Canada.
Thanks to China Going Global Thinktank Service (CGGT) for sponsoring this post.
- Evolution and effectiveness of US sanctions against Iran: Has the US committed an abuse of process?
The US sanctions against Iran originated in the 1950s when Iran began its nuclear program. In November 1979, during the Iran Hostage Crisis, then US President Carter announced that the US was banning all imports of oil from Iran and demanded that US banks freeze the US$12 billion in Iranian government deposits and assets. In 1980, the US and Iran severed diplomatic relations. The US began a blanket ban on Iran-US trade and prohibited Americans from traveling to Iran or engaging in investment operations and financial transactions in Iran. Under President Reagan, the sanctions imposed by the US on Iran were briefly relaxed. In 1982, however, the US government determined that Iran had backed a Hezbollah plan to bomb the American Embassy in Beirut, and by 1984, the US had declared Iran a “terrorist country”. The Reagan administration then proceeded to announce a blanket ban on the import of oil from Iran. These bans continued throughout President George Bush Sr.’s time in office.
During the Clinton administration, the US passed the Iranian Transaction Regulations (ITR) in March 1995 and the Iranian Sanctions Act (ISA) in 1996. The ITR and ISA have become the two core pieces of legislature behind the US’s current sanctions against Iran. They are also used as reference when the US sanctions other countries. Their contents include: a total ban on all trade and investment between the US and Iran, expanding the scope of sanctions to entities other than American companies, prohibiting anyone from making large-scale investments in Iran’s oil industry, and so on.
After the terrorist attacks on the US on September 11, 2001, President George W. Bush declared Iran and other countries as the “axis of evil”. The US Treasury Department established the Office of Terrorism and Financial Intelligence (TFI), which governs the infamous Office of Foreign Assets Control (OFAC), the main enforcement agency of the US’s economic sanctions against Iran. In 2006, the US Security Council began to impose new sanctions on Iran.
From March to June 2013, as Iranian President Ahmed Ahmadinejad prepared to leave office, US-Iranian relations eased, and officials from the two countries held secret talks. In September, three months after the more pragmatic and moderate Iranian President Rouhani came to power, Obama called Rouhani, marking the first direct contact between US and Iranian leaders in decades.
In July 2015, Iran, the US, Britain, France, Russia, China, and Germany reached a comprehensive agreement on the Iranian nuclear issue and signed the Joint Comprehensive Plan of Action (“Iran nuclear agreement”), which took effect in January 2016.
On January 16, 2016, President Obama signed an executive order to convert the US sanctions against Iran from secondary sanctions to primary sanctions. US companies and individuals were still not allowed to engage in oil transactions with Iran, but the US would no longer restrict third countries from engaging with Iran petroleum cooperation and trading.
On May 8, 2018, the newly elected US President Trump announced that the US withdrew from the Iran nuclear agreement and imposed the highest level of economic sanctions on Iran. In August of the same year, the US reopened a series of sanctions on Iran’s non-energy sectors, including finance, metals, mining, and automobiles. On November 5, it increased sanctions on Iran’s energy and banking sectors, marking a total ban on Iran in all oil-related sectors. On March 7, 2021, President Biden announced his administration would continue sanctions against Iran.[1]
The 42-year-long US sanctions against Iran have been intermittent, sometimes absent, but are closely related to the changeable and flexible political situation. For the corporate entities managed by the state, in terms of the compliance and legal issues, navigating these sanctions can be extremely difficult. This runs counter to the law’s purpose of providing a loose development link to assist companies and enterprises in promoting economic development. The intermittent and unreliable nature of the US’s sanctions against Iran also undermines the legality and legitimacy of the accusations against Huawei and Ms. Meng Wanzhou. The actions smack of abuse of public power.
- Has the Canadian government committed an abuse of process in this case and violated Ms. Meng’s Charter rights?
Ms. Meng’s lawyers have taken broad legal action against the Canada Border Services Agency (CBSA) and the Royal Canadian Mounted Police (RCMP) concerning an alleged abuse of process and violation of Ms. Meng’s Charter rights. These accusations have been made very public in the media. Ms. Meng’s lawyers have applied to the British Columbia Supreme Court for larger disclosures of information, believing that the RCMP and the CBSA had committed an abuse of process during her arrest, while simultaneously filing a civil lawsuit against the Canadian government in the British Columbia Supreme Court, accusing them of seriously infringing upon her Charter rights, and seeking remedies for Canadian government officials’ dereliction of duty and unlawful detention due to multiple violations of the procedures. The following two steps can be taken during two respective phases: the detention order issued by the extradition judge and the surrender order issued by the Minister of Justice. If a judge finds that there has been a serious abuse of process during the extradition procedure, the extradition proceedings may be terminated. Similarly, if Ms. Meng’s Charter rights had been seriously violated during her arrest, the Ministry of Justice could also refuse to extradite her due to a seriously miscarriage of justice.
Both the abuse of process and Charter rights violations, if true, would fall under the category of basic human rights issues. Laws against abuses of process are intended to curtail improper behavior within government administration, protect the integrity of the judicial system, and meet the basics requirements of due process. Abuses of process may also produce an infringement upon the Charter rights of a person sought for extradition. Both of these issues are related to Section 7 of the Canadian Charter of Rights and Freedoms, under which everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Extradition treaties, extradition hearings, and extradition procedures must all comply with the Canadian Charter of Rights and Freedoms. Extradition cases frequently involve Sections 1, 6, and 7 of the Charter.
According to Section 1 of the Charter, Canada guarantees that all citizens enjoy the rights and freedoms listed in the Charter, and are only subject to legally reasonable restrictions that can be justified in a free democratic society.[2]
Section 6 of the Charter is related to the rights of residence and movement, and stipulates the right of Canadian citizens and permanent residents to move freely and earn a living within Canada.[3]
In judicial practice, the court generally believes that Section 7 of the Canadian Charter of Rights and Freedoms does not require specific forms of evidence. This has made the Ms. Meng’s case on abuse of process and infringement of Charter rights quite difficult.
A general timeline of Ms. Meng’s arrest has been made public to the media:
After Ms. Meng’s flight arrived in Vancouver, she and a companion were singled out for the secondary inspection, and were escorted to the secondary screening area. CBSA officers did not inform her that she was being arrested or that a warrant had been issued for her arrest. Ms. Meng was not informed of her rights under the Canadian Charter of Rights and Freedoms. Ms. Meng asked why she had been selected for a secondary screening, but she did not receive an answer. At the same time, CBSA officers conducted a thorough search of her luggage, questioned her extensively, and compelled her to turn over the passwords to her electronic devices. She was asked about Huawei’s global business operations, and particularly its operations in Iran.
Some reports claim that Canadian law enforcement officers were communicating with their American counterparts during that time and receiving instructions on how to further proceed. Only after being initially detained for more than two and a half hours, Ms. Meng was informed that she was being arrested. It was at that time that she was advised of her right to counsel. In terms of whether this series of events violated the principles of fundamental justice stipulated in Section 7 of the Charter, there is plenty of room for interpretation and intense argument between the person sought and the Crown.
- Is the US exercising long-arm jurisdiction?
The US’s export control law related to Iran is part of its domestic legal code. The US regularly restricts and sanctions “foreign” companies and citizens, as can be seen in their interference in international trade relations with Iran. This is because of the presence of long-arm jurisdiction in the US.
Long-arm jurisdiction refers to the ability of a court to exercise jurisdiction over a defendant who is outside of their statutory jurisdiction. These jurisdictions can refer to state, provincial, or even national jurisdictions. A certain minimum connection with that state, and the specific generation of the proposed claim are supposed to limit long-arm jurisdiction. Through this principle, the state can have jurisdiction in personam to the defendant and can issue subpoenas to the defendant even when they are outside the state.
Furthermore, US courts have long held that as long as a “foreign” defendant has some connection with the state where the court is located, the court has jurisdiction over the defendant, has the right to accept the case, and has (1) the right to summon the foreign defendant to appear in court in accordance with legal procedures, (2) the right to make a valid judgment in accordance with the law, and (3) the right to issue a judgment that a court of the defendant’s state must recognize and enforce.
Initially, long-arm jurisdiction was mainly used by interstate courts in the US, allowing them to exercise jurisdiction over people outside an individual state, but still within the US. Later, the US’s “long-arm” became longer and longer, extending from interstate jurisdiction to international jurisdiction, placing non-American citizens under the jurisdiction of American courts.
In the case of Ms. Meng, the US imposed sanctions on Iran and required Canada detain and seek extradition of a Chinese citizen in Canada for actions she had taken in Hong Kong. This stretches the objective territoriality and minimum contact principles normally expected to limit long-arm jurisdiction almost beyond belief.
The objective territoriality principle means that as long as an act that occurs abroad produces an effect within the territory of the court, regardless of whether the perpetrator is a citizen or resident of that court’s natural jurisdiction or whether the act conforms to the local law, the US court can claim jurisdiction.
The two conditions for applying the minimum contact principle are: (1) The criminal suspect or the defendant has engaged in continuous commercial activities within the jurisdiction of a court, or their actions or inactions have caused damage within the state, and (2) The plaintiff’s cause of action stems from these commercial activities. It doesn’t matter if the criminal suspect or defendant is located within the jurisdiction of the court.
In Ms. Meng’s case, although she herself was of Chinese nationality and was in a third country – Canada – the effect of her actions has been deemed to have been felt within the US, giving a US court the minimal contacts they need to exercise long-arm jurisdiction. So, the Federal Court for the Eastern District of New York issued an arrest warrant against Meng Wanzhou as early as August 2018.
The objective territoriality and minimum contact principles are standards the US has used with great flexibility and wide applicability over the years and are the basis of the extradition procedures they have brought against Ms. Meng. This is why the specific presentation Ms. Meng gave at a Hong Kong restaurant while meeting with HSBC executives and whether it actually constitutes fraud have become so key. Based on the foregoing arguments in this paper, Ms. Meng’s behavior cannot be identified as fraud, and accordingly cannot be identified as a crime in US law. This would mean the US courts have no jurisdiction over her.
It should be pointed out that the US history of long-arm jurisdiction is an extraterritorial expansion of its domestic jurisdiction. It has been used to demonstrate the US’s global judicial hegemony, which in turn violates a core principle of international law: A country should not exercise its power on the territory of another country. By accepting extraterritorial expansion of domestic jurisdictions, the international community would see a proliferation of jurisdictional conflicts in international legal cases, and other serious infringements on the judicial sovereignty and legitimate rights and interests of all countries and their citizens.
Thanks to China Going Global Thinktank Service (CGGT) for sponsoring this post.
[1] See http://finance.sina.com.cn/money/future/fmnews/2018-08-14/doc-ihhtfwqq5545430.shtml, accessed on March 12, 2021. See also https://www.sohu.com/a/388784146_665541, accessed on March 7, 2021.
[2] Canada, Constitution Act, 1982, PART I; Canadian Charter of Rights and Freedoms: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[3] CANADA, Constitution Act, 1982, PART I; Canadian Charter of Rights and Freedoms: 6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada. Rights to move and gain livelihood: (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. Limitation: (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of resent or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. Affirmative action programs (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
